Examining the new importance of ‘where’ we speak

When we say something that might be threatening, how much does where we say it matter?

The U.S. Supreme Court agreed in June to examine that question from a new angle – the increasingly popular method of online comments and posts on social media, as distinct from directed or face-to-face exchanges.

The First Amendment generally shields us from being punished for what we say, but there are exceptions, among them what is called a “true threat.”

Courts have used two approaches in dealing with threats. One requires police and prosecutors to show that the person making the threat genuinely intended harm. The other – and one used more often in recent years – is whether “a reasonable person” would be put in genuine fear for their safety or their life.

Threats also needed to be real to meet these tests. Wishing aloud that a certain person would be struck by a meteor, for example, may be crude and tactless, but clearly the speaker cannot make that occur. Threats also have to be made to a certain person or identifiable group.

Threatening to kill someone during a face-to-face argument, or via a letter or phone call, very likely would warrant prosecution.

But now it seems the Court will come face-to-face with a technological twist – one that will ask them to further define or finally endorse one of the two legal standards: What if the threats are comments or posts on a social network like Facebook? Are such posts – not specifically sent to a person, who may be named – enough to support a “reasonable person” standard?

The Court may well also consider what to make of the distinctions based in individual privacy settings on various social media, which can range for posts that are totally public, through layers in which posts are directed to individual’s accounts or small group “walls” but still public, to directed posts that are more like a personal e-mail or phone call.

The case before the Court involves a husband and wife who separated in 2010. Court records say that Anthony Elonis sometime later began writing on his Facebook page about killing his wife and others, including an FBI agent who was investigating his actions.

Elonis later defended his posts as just “therapeutic,” even art in the style of rap lyrics, and claimed they did not meet the legal requirements of a “true threat.” However, when the gory postings continued, and the subjects of his rants felt threatened, Elonis was convicted of violating a federal law that prohibits the use of interstate communications for threats to individuals, and sentenced nearly four years in prison.

Elonis says he never actually intended to harm anyone, and that the existing law was drawn up in a pre-Internet era, and ought to now be adjusted to recognize a new form of expression, on sites like Facebook and Twitter.

Legal scholars and Elonis’ lawyers note that courts even now differ on how and when to apply the two existing standards.

In 2002, the Arkansas Supreme Court upheld a juvenile-court conviction of a high school student for writing rap lyrics it said were a “true threat” of physical violence. In that case, the lyrics were written specifically for a fellow student, delivered to her and she was, the court said, “intensely frightened and upset” by the threat and believed the juvenile might follow through on the threat because he had a criminal record.

But in 2012, a federal appeals court in California refused to reinstate the conviction of an Arizona man accused of planning a Super Bowl massacre, saying a rambling “manifesto” did not constitute a threat to people, since it was addressed to media outlets not specific persons, and that man’s threat to “test the theory that bullets speak louder than words” was not sufficient to support a conviction under federal law.

The Supreme Court arguments will focus on how to apply to Elonis’ arguments the latest decision it made on “true threats.” In 2003, in Virginia v. Black, the Court struck down a state law that held any cross-burning was a form of intimidation, saying proof of “threat of intimidation” was required, since the action could be what the court called a “message of shared ideology.”

In upholding Elonis’ conviction, the 3rd U.S. Circuit Court of Appeals said that while an action such as cross-burning may or may not always constitute a threat, Elonis’ Facebook posts made specific threats to named individuals – thus avoiding a conflict with Virginia v. Black.

The issue raised by Elonis is whether the online distance that social media put between the person “speaking” and those “listening” makes all the difference between protection and prosecution.

Gene Policinski is chief operating officer of the Newseum Institute. He can be contacted at gpolicinski@newseum.org. The Institute’s Megan Chester contributed to this column.

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

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Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

The First Amendment to the U.S. Constitution – the cornerstone of American democracy – is the focus of the National First Amendment Moot Court Competition. Recognized as one of the nation's finest constitutional-law competitions, this annual event features a current First Amendment controversy.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

Past participants in the National First Amendment Moot Court Competition have represented law schools nationwide, from Brooklyn Law School to Duke University to Arizona State to Harvard.

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State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
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